An arbitrator in Newfoundland and Labrador recently held that an employer was justified in refusing to place an employee in a safety-sensitive position due to his daily use of prescribed marijuana. Of particular significance were questions regarding length and extent of impairment.

Background

Since 2016, the employee had a prescription for daily use of medical marijuana for chronic pain resulting from Crohn’s disease and osteoarthritis. In the evening, he would ingest up to 1.5g of cannabis per day by vaporization and did not sense any “impairment of his functioning during daytime working hours”. The employee’s prescribing physician stated the employee’s medical marijuana use was “very unlikely to impair any of the listed job functions.”

In November 2016, the employee was hired as a utility person for a company that was constructing a transmission line as part of a hydroelectric facility. Employment was subject to drug and alcohol screening required of all employees of the project, which the employee failed. He then filed a grievance through his union.

Role & degree of impairment

The employer took the position that the role of a utility person was safety-sensitive and could not accommodate the employee because they were not able to measure the employee’s impairment – thereby increasing workplace safety risk. The employee had also applied for the position of assembler and was advised that this was also a safety-sensitive position and therefore could not be accommodated.

The employer agreed in this case that the employee had a disability and was entitled to protection from discrimination in employment (similar to Newfoundland, the BC Human Rights Code specifically includes protections against discrimination in employment). As such, the employer was required to accommodate the employee to a point of undue hardship. This means the employer had to prove the safety standard being imposed was reasonably necessary for the job. The employer also had to prove that it would be impossible to accommodate individual employees sharing this employee’s characteristics – that of possible residual impairment from daily cannabis use – without experiencing undue hardship.

Arbitration

The arbitrator heard from 13 witnesses over 11 days. In considering this employee’s ability to work safely, he examined evidence from Health Canada, the College of Family Physicians of Canada, the College of Physicians and Surgeons of Newfoundland and Labrador, the employee’s prescribing physician, the employer’s medical consultant, a pharmacology expert and a medical marijuana expert.

In the end, the arbitrator found that the regular use of medically-authorized cannabis can cause impairment, the duration of which can last up to 24 hours after use. Persons consuming medical cannabis may sincerely believe they are not impaired in their daily functioning, however experience residual impairment. Lack of awareness or real insight into one’s functional impairment can be a consequence of cannabis use. The arbitrator also found that there were currently no readily available testing resources in Newfoundland and Labrador to allow an employer to “adequately and accurately measure impairment arising from cannabis use on a daily or other regular basis”.

Outcome

Ultimately, the arbitrator decided that because the employer could not measure impairment, it could not manage its risk. Based on that, employing the person as a utility person or assembler would be a safety hazard due to residual impairment from daily evening use of cannabis that could not be adequately monitored. The union had not sought that the employee be assigned a different job other than the two applied for so the question remained open as to whether this employer had other non-safety sensitive positions the employee could have been able to do.

While use of cannabis is now legal in Canada, like alcohol, it does not mean that employees are able to use it during lunch breaks or at such other times as would impair them at work. There is no definitive evidence on how long residual impairment may last and therefore this puts all employees in safety-sensitive positions at risk of being unable to be accommodated. In addition, the duty for an employer to accommodate only arises where the employee has a disability or dependency.

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Employers: if you do not have clear drug and alcohol policies in place, as well as procedures related to employees requiring accommodation, we can help.

Employees: if you have a disability requiring accommodation and are not sure what your rights are, we can help.